SUPREME COURT OF QUEENSLAND

[1]  CHIEF JUSTICE:  I have had the advantage of reading the reasons for judgment of Keane JA.  I agree that the application for leave to appeal against sentence should be refused, for those reasons.

[2]  KEANE JA:  On 6 July 2009 the applicant was convicted on his own plea of trafficking in the dangerous drug cannabis sativa between 15 January 2007 and 6 December 2007.  He was sentenced to six years imprisonment with parole eligibility after one-third of the sentence has been served in custody, ie on 6 July 2011.

[3] The applicant seeks leave to appeal against his sentence on the ground that it is manifestly excessive.  By way of elaboration of this ground, and perhaps as a separate ground, it is submitted on the applicant's behalf that the sentence imposed on him does not accord with the need for parity with the sentences imposed on his co-offenders.

The circumstances of the offence

[4] The applicant's co-offenders were John Diano and Richard Michael Badari.  Their activities were conducted as part of an organised crime network trafficking commercial quantities of cannabis grown in South Australia.  The cannabis was packaged into one pound units and transported to Queensland in motor vehicles specially modified for the purpose of concealing their illicit cargo.  The cannabis was delivered to wholesalers and distributed by retail sales in the Gold Coast area.  The applicant's role in this network was that of a wholesaler.

[5] Mr Diano organised the acquisition of cannabis from the producers in South Australia.  He also arranged the transport to Queensland.  He admitted that he organised the supply of at least 200 pounds of cannabis which was sold for $2,800 to $3,200 per pound generating more than $600,000 in cash.  Mr Diano used two couriers, one of whom was Mr Badari.  For Mr Diano's role in this business, Mr Diano (who had a criminal history in South Australia which included a conviction for taking part in the production of cannabis) was sentenced to seven and a half years imprisonment with parole eligibility after two and a half years.

[6] Mr Badari's involvement was limited to acting as a courier between 13 June 2007 and 6 December 2007.  He admitted delivering cannabis to the Gold Coast on 10 trips involving 70 pounds of cannabis.  He delivered the cannabis to wholesalers and received payment which he returned to Mr Diano.  Mr Badari received $100 per pound of cannabis delivered by him.  For his role in the operation he was sentenced to four and a half years with parole eligibility after one and a half years.

[7] The applicant acted as a wholesale distributor in the Gold Coast area.  He was sentenced on the basis that he was supplied with a total of 70 pounds of cannabis in 12 transactions.  There was no evidence of the extent of the profit made by him from his part in the network, but the street value of the cannabis he sourced and supplied was said to be in the order of a quarter of a million dollars.

[8] None of the offenders were users of cannabis.  Their motivation was purely commercial.

[9] The applicant decided, of his own volition, to cease his involvement in the network just before its activities were closed down by police.  This decision appears to have been made after he had reason to believe that the network had been compromised.

The applicant's personal circumstances

[10]  The applicant was between 35 and 36 years of age at the time of his offending.  He was 37 years of age at the date of sentence.  He has no relevant criminal history.

[11]  The applicant is a citizen of the United States of America.  He had been living in Australia for three years after moving here to live with his Australian wife.

[12]  On the applicant's behalf, a report by a psychologist was tendered at sentence which suggested that the applicant was suffering from:

"chronic untreated and undiagnosed depression at the time of the offending. This psychological dysfunction is likely to have impacted negatively upon his judgment and critical decision making … [I]f not for that psychopathology and his trauma exposure [to the September 11 terrorist attacks in New York City and a plane crash one month later], he would have been unlikely to become involved in such risky and illegal behaviour."

[13]  The psychologist considered that the applicant was at a low risk of re-offending.

[14]  The applicant was able to rely upon a number of references in which he was described as a law-abiding and community-minded man.

The application

[15]  The sentence imposed on the applicant accords with the decision of this Court in R v Bercolli.[1]  In that case an offender of mature age with no criminal history who pleaded guilty to trafficking in cannabis over a 13 month period involving a receipt by him of $50,000 was sentenced to six years imprisonment with a recommendation for parole eligibility after two years.  That sentence was said by the Court in that case to be at the high end of the range but not manifestly excessive.

[16]  On the applicant's behalf, reference is made to the decisions of the Court in R v Brown[2] and R v Wallace[3] to support the submission that the sentence of six years imprisonment was outside the proper range.  In my respectful opinion, these decisions do not assist this Court in its consideration of whether the sentence imposed in this case was manifestly excessive. 

[17]  In each of R v Brown and R v Wallace the Court declined to interfere with a sentence of seven years imprisonment imposed for offending of greater criminality than might be ascribed to the applicant in this case.  To say that the Court in R v Brown and R v Wallace regarded higher sentences imposed for worse crimes as not manifestly excessive is to say very little, if anything at all, as to whether the sentence imposed on the applicant in this case was manifestly excessive. 

[18]  In R v Dwyer,[4] this Court rejected as unsound attempts to extrapolate from decisions of the Court upholding sentences as within the proper range to calculate the proper range of sentence in a case involving a lesser degree of criminality:

"An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process."

[19]  It is more pertinent to note that in R v Wallace,[5] the President said of a wholesaler of cannabis who sold 236 kilograms of cannabis over a 12 month period:

"The maximum penalty for this offence of trafficking in cannabis was 20 years imprisonment. The applicant … was a mature man. His offending was an extensive commercial wholesaling operation extending over a 12 month period. The sentence imposed of seven years imprisonment with parole eligibility fixed after two years and nine months was within the appropriate range, even taking into account [his] early plea of guilty and his extensive cooperation with police."

[20]  It is true that in the present case the applicant's trafficking involved substantially less cannabis than was involved in R v Wallace; nevertheless it is accurate to describe the applicant as having been involved in an extensive wholesale commercial operation over a 12 month period.  The sentence imposed on the applicant, a mature man, for his role in such a serious crime motivated solely by the pursuit of money is not manifestly excessive.

[21]  The applicant also referred to the decision of this Court in R v Yates[6] where a trafficker in a range of drugs who had been in business for seven months was sentenced to four and a half years imprisonment to be suspended after 15 months.  On appeal the head sentence was upheld but the sentence was suspended after nine months.  That case is not comparable to this case.  The offender in R v Yates was an apparently drug dependent, street level dealer who was carrying on business as agent for her mother.

[22]  The applicant also referred to this Court's decision in R v Collins.[7]  In that case an appeal by an offender against a sentence of four years imprisonment suspended after six months for trafficking in cannabis was dismissed.  The offending consisting of acting as a courier occurred over a period of only three months and seems to have involved only about three deliveries.  The lower level of criminality in the offender in R v Collins compared with the criminality of the applicant here is readily obvious.  And in any event, as is made clear in the reasons of Holmes JA,[8] the sentence imposed on the offender in R v Collins was distinctly lenient.

[23]  I reject the argument that the sentence was manifestly excessive.

[24]  I turn then to this issue of parity.  The question is whether the applicant has a "justifiable sense of grievance" at the difference in sentences imposed on him and his co-offender.[9]  It is submitted on the applicant's behalf in this regard that his sentence should not have exceeded that imposed on Mr Badari, and should have been substantially less than that imposed on Mr Diano.

[25]  The applicant's offending can reasonably be seen to be of greater criminality than that of Mr Badari – although the difference is not great as is reflected in the sentences imposed on them – because the applicant was acting in his own right as a drug wholesaler rather than as a "mule" for Mr Diano's operation.  It should also be noted that the period of Mr Badari's offending was substantially shorter than the period of the applicant's offending.  There were, therefore, good reasons to distinguish the position of Mr Badari and the applicant to the disadvantage of the applicant.

[26]  So far as the relativity between the sentence imposed on Mr Diano and the sentence imposed on the applicant is concerned, the applicant has little to complain about.  The sentence imposed on Mr Diano reflects the greater criminality involved in his role as the principal organiser of the network.  The difference between the sentence imposed on Mr Diano and that imposed on the applicant is not such as to suggest that the applicant is entitled to a legitimate sense of grievance that the sentence imposed on him was unduly severe.  It might as readily be said that the sentence imposed on Mr Diano was unduly lenient as it is said that the sentence imposed on the applicant was unduly harsh, and no-one seeks to argue that the sentence imposed on Mr Diano was unduly lenient. 

Conclusion and order

[27]  I am not persuaded that the learned sentencing judge erred in any respect.  The sentence was not manifestly excessive.

[28]  I would refuse the application for leave to appeal against sentence.

[29]  CHESTERMAN JA:  I agree that the application for leave to appeal against sentence should be refused for the reasons given by Keane JA.